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Monday, September 24, 2007

TYC's pepper spray policies give employees contradictory orders

I'm more convinced than ever that the Texas Youth Commission's new directive on using OC or "pepper" spray will soon be overturned.

Regular readers know TYC has been sued over Executive Director Dimitria Pope's August 2 directive moving OC spray or "pepper spray" up the use of force continuum, letting employees use it more often. But according to longstanding TYC policies created in the wake of the historic Morales v. Turman settlment in 1984, OC spray or "pepper spray" may be used only in these limited circumstances; to:

quell a riot or major campus disruption;

resolve a hostage situation;

remove youth from behind a barricade;

secure an object that is being used as a weapon and that is capable of causing serious bodily injury;

protect oneself from imminent harm when manual restraint would be impracticable;

protect youth, staff or others from imminent harm when manual restraint would be impracticable;

prevent escape and fleeing apprehension when manual restraint would be impracticable.

Here's the problem: Ms. Pope's August 2 directive instructed "trained" staff "to use OC spray prior to agency-approved methods of physical restraint whenever practical"So how does that jibe with the GAP rule to only use OC spray "when manual restraint would be impracticable"? I don't believe it does.

Bottom line: Her directive contradicts the GAP policy, which was never formally changed. Pope'sdirective did not go through the regular agency rulemaking process and does not have the force of TYC's General Administrative Polices. Here are the circumstances under which TYC GAP policies allow using physical restraints:

Protection of youth from imminent self-harm;

Protection of self from imminent harm;

Protection of other youth or third parties from imminent harm;

Protection of property from imminent damage;

Prevention of escape or fleeing apprehension;

Movement of a youth referred to the security unit, isolation room or alternative classroom;

Movement of a resistant youth within the security unit to minimize the disruption when the youth’s behavior is substantially disruptive and the youth refuses to follow a reasonable request to stop the behavior;

Movement of a resistant youth from a dangerous or disruptive situation;

To conduct a search of a resistant youth reasonably believed to be in possession of a weapon, an item that can be adapted for use as a weapon, a controlled substance, or other item(s) that breech the security of the facility;

To conduct a search of a resistant youth entering the security unit;

Administration of medical treatment to a resistant youth when, under the circumstances, failure to administer the treatment could have serious health implications as determined by a health care professional; or

Collection of DNA samples from a resistant youth, as required by law.

That list of circumstances justifying physical restraint includes many instances where using OC spray would fall outside of GAP approved policy.

TYC employees cannot simultaneously follow the August 2 memo and the longstanding, still in place GAP policies. They simply contradict one another. That's why the lawsuit by Texas Appleseed and Advocacy Inc. is a slam dunk (see the original petition) - Ms. Pope can't change that rule with a mere administrative memo, she must publish proposed changes in the Texas Register and use the proper legal processes. The lawsuit calls her on overstepping her bounds.

Another aspect of the GAP policies appears to have been defenestrated by TYC administrators:

In TYC high restriction institutions, only the facility administrator, assistant superintendent, ADO, duty supervisor, director of security and security personnel whose regular assignment is outside the security unit are authorized to routinely carry OC spray on their person. (emphasis added)

According to this rule, TYC employees in the security units cannot routinely carry OC spray. But isn't that happening now? How else can OC spray be used prior to physical restraint? Perhaps some current TYC employees can let us know if OC spray use right now is restricted to those employees.

If true, it creates real danger for everyone if front-line staff have to wait for someone outside the unit to break up violence, since under the Aug. 2 memo, youth must be sprayed before they're physically restrained. OTOH, if staff in the units carry OC spray, then it violates the GAP policy.

That's a Catch-22 not resolved in the current rules. I'd love to know more about who's now carrying OC spray at the units on the ground.

In my opinion yout analysis is totally correct. Additionally when one issues a directive that is clearly in violation of an agency rule, that person is no longer covered by sovereign immunity but becomes personally liable for monetary damages relating to any injuries arising from the incident.

When is all this arrogant, blatant disregard of law going to end? First, the lege passes a contradictory law and creates a catch-22 for older, sentenced offenders, then the ones brought in to "reform" the agency ingnore the law, apparently with the complete consent of the legislature and the governor. Who is there that can force them to obey the law? The useless attorney general? I don't believe the DOJ has any authority over the enforcement of state laws, do they? We need a thorough housecleaning in our political leadership - governor, attorney general, along with Whitmire, Hinojosa and that sorry excuse for a Lt. Governor. Alas, that will never happen, because they are giving the people of Texas exactly what they want. Let's face it, practically the only people who care about the fate of youth in TYC are the direct care staff, a few low-level administrators and a few other folks who follow this blog. God help us! (I mean that literally)

Most persons I know with common sense are planning on finding other jobs and leaving this mess. It is too confusing and difficult to try and weather this hurricane, this tropical storm of a different nature. Too unpredictable. I might become a casualty. Got to leave, board up the windows and get the hell out of here.

I wished someone in government was really paying attention to this albatross that they have created.

The way I see it , the lege has push one adminstration out of the bed and another group climbed in.

Like getting a divorce, you kick one out and bring another in. Only thing you accomplished was a different face with a different spin on the same old crap you kicked the first one out for. Now that the second one has arrived the first one does not seem to have been all that bad!

To be fixed we have to find the ones that REALLY want to fix us and do you think the ones in the bed now are going to let these people crawl in?

"when one issues a directive that is clearly in violation of an agency rule, that person is no longer covered by sovereign immunity but becomes personally liable for monetary damages relating to any injuries arising from the incident."

Hmmmmm. Ms. Pope, are you reading? If not, can someone please convey this information up the chain of command? (I assume the lawyer for the OC'd kid in Corsicana who went into convulsions already knows about it.)

I wonder if the General Counsel conveyed that key legal advice to the E.D. before she issued the 8/2 directive?

Either they're dumb lawyers or Pope said to hell with their advice. Owens is complicit in this too. He can't say he was a non-employee giving advice. I've said it before, he was just a figure head in TDCJ and dumb as a box of rocks. The man simply has no organizatinal skills and ignores evidence-based solutions. Actually, Pope is smarter than him and that's not saying much.

Ed Owens became a non-player after Whitmire did his fist-pounding act on him, telling him that he did not want to hear his plans, he wanted action, he wanted heads to roll, "do you hear me? I want heads to roll!" Right after that tirade, he turned it over to daPope, who fired all the juvenile justice experts in TYC, and brought in her cronies from the RED group.

One directive discourages use and the other encourages use - as opposed to more deadly alternatives? Why are police obsessed with physical and legal intimidation and totally oblivious to solving problems without coercion? That's why - when I attended the University of Texas - the police were totally worthless in handling problems with fraternity misconduct. They are also incompetent to handle domestic violence for the same reasons. They can't seem to deal with anyone except on a basis as an authority figure who can physically or legally cause harm.

jt barrie, if you are still judging cops by your experiences as a college student, I suggest you have not grown very much emotionally. You make pretty strong and sweeping statements, which quite frankly, betray your ignorance and an ability to only see one side of an issue. Are you only reading the comments of the few troglodites who have posted here, and ignoring the thoughtful concern of the many juvenile justice professionals who work in the system every day, and who, like myself, are appalled by the current leadership of TYC? I might point out that I know several of those posters I referred to, and some of them come from a law enforcement background. Your spiteful denigration of law enforcement does not contribute anything positive to this discussion. Old Salty

I hate to get off the target ( pope and owens) but I am asking for help. I've read my peers words of condolences for GNS, I'm not interested in living thru whatever hell she has in store for us. Finding a comparable job in a small town is near impossible. I would rather try to stop her. But I dont know which closet her skeletons are in. I was blissfully unaware of her before she landed at GNS.

Don't believe everything you read here. Often people who post have a hidden agenda, particularly when they engage in personal attacks. I do not know Gwan well, but from what I have seen of her, she does not have horns and a tail. She is literally a person who has pulled herself up by her bootstraps and she tends to have some rough edges. But my impressions of her is that she is pretty sharp, and she does care deeply about making a difference with the kids. Like I said, I do not know her well, but those are the impressions I have gotten from her, and that is the word I have from people who do know her whose opinions I respect. Why don't you give her a chance and judge for yourself? Old Salty

I do not believe your comment about "hidden agendas"! Most people who post here are so frustrated that nothing seem's to be changing for the better and the people who need to be removed have actually seemed to gain power from this whole mess. Personal attacks aside, people come here to vent. Do I have anything "personal" or an agenda towards Pope or Owens because I believe they are not doing anything but creating more trauma to an already dying agency??I think we see this blog as a way of trying to let the outside world know how bad TYC really is.

Old salty, I respect the things you've written, but from personal experience, I dont respect people who lead by intimidation, which is what Gwan does. Having my job threatened every time I make a mistake creates a working envioroment that puts the focus on covering your ass, rather that doing your job.

All I said was not to believe everything you read here, but to judge for yourself. There have been some really nasty things written about people, such as Gwan, who have recently been promoted from within TYC. I have a passing acquaintace with all of them, and and do not know all the facts about any of them. The tone of the comments made about them makes me at least a little bit suspicious about the motives of the writer(s). Thus my advice to judge for oneself. If Gwan is trying to lead by intimidation, it surprises me, because that is more in the style of Clay, Barnard, Freeman than that of the person who mentored her. Dr. Brantley was a demanding boss, but he never tried to lead by intimidation. I do know him quite well, and actually worked for him for a time. So if she is following the model of Chester Clay rather than the model of Don Brantley, I would be disappointed. Old Salty

Can anybody tell me if JCOs in the units are carrying OC spray, or if it's really just "only the facility administrator, assistant superintendent, ADO, duty supervisor, director of security and security personnel whose regular assignment is outside the security unit" who get to use it as the GAP policy says?

The staff have been advised to use common sense when dealing with a situation. If the staff can SAFELY use manual restraint techniques, use them. If the staff or the youth are likely to be injured as a result of initiating a restraint, they have been instructed to call for assistance and wait for help.

Two kids fighting-2 staff present-restrain.

6 youth fighting-1 staff present-wait for help.

At our unit, the shift supervisors and security staff who have been trained in OC are the only ones allowed to carry spray.

In regards to the line staff's feelings about spray: the staff injuries seems to have dropped SIGNIFICANTLY since the inception of the spray and we have only had a handfull of spray incidents. There have been a few from youth fighting, but most have been pre-aaproved by facility administration and videotaped for policy compliance when a youth barricades himself in his cell or is in possession of a weapon. The youth who fight seem to be stopping when directed by staff and spray is not having to be utilized near the way one might guess. Hope this clarifies a bit for what it is worth...

Sounds like good common sense to me.One of my old Lt.told me when I started 24 yrs ago always use common sense and good judgment.And here I am, still here,and I love what I do.There will always be policies that contradict one another.But I always look back at what my Lt.told me when I was 18yrs old. But there will always be people on the outside looking in.You just have to know how to play the game.

outside security Grits. Supervsiors carry it also, but not those working directly with kids. Inside security has been granted as long as the camera is rolling. This has been blown way out of proportion.

I was invited to the press briefing but I had to help my daughter and grandbaby move this afternoon.

@ 9:06, do I understand you to mean security inside the units can carry OC spray if there are cameras present? If so, that would violate the current GAP policy as I understand it.

And to clarify, 9:19, are you saying staff inside the units can carry and use OC spray under some circumstances without video?

I'm just trying to get a clear sense of how it's being used on the ground and by whom, and it seems like we've had two answers (yes and no) to the question of whether staff inside the units currently can carry OC spray, and also a disagreement on the role video plays in permission to wield OC. Can anybody clear this up?

Maybe OC spray is the best thing since sliced bread (though I have my doubts), but TYC still can't violate it's own administrative code.

It is not feasible for staff to walk around with video cameras, so the answer is no, not all OS usage is video taped. If it is planned and staff can utilize a camera yes it will be video taped, but not always.

Yes, all trained staff JCO V and above can carry OC if they have received training. Also, special tactic units (STAR Teams) can carry OC and members on this team can be a JCO IV (non-supervisor).

In regards to situations where you have youth on youth violence and have to wait for security or other certified staff to arrive with OC spray This policy does more harm than good. You have had some situations where kids have really gotten hurt by other kids while staff just stood around waiting for other certified staff to arrive with OC spray to quell the situation.Under GAP policy this could be deemed an AMI for alleged mistreatment,fostering an unsafe or hostile environment and outright neglectful supervision of our youth by trained staff but its OK to save money and downtime from FMLA to let the kids hurt each other. The policy was designed to cut down on the number of staff primarily who got hurt and went on FMLA and this left the kids secondary which is wrong. This system seems more and more moving toward TDCJ with each passing day. I thought we were going to change for the better but with each passing day I get even more disappointed and discouraged with our leadership in TYC. It seems that some of the remaining loose ends that need to be weeded out are coming to power under the new administration and the new TYC is looking a lot like the old one. In conclusion our actions are to save money. They dont really care about the kids at all or the staff. Just the money.

I hate to get all English teacher on you, Scott, but you said. "...TYC still can't violate it's own administrative code." Maybe TYC shouldn't, but obviously the agency can and does violate it's own administrative code routinely. When asked about it the answer is usually that it is in the process of being revised. It is obvious that right now the agency is becoming very top heavy. Some Central Office administrative assistants are making as much money as HR Directors. We need staff in the field, but all the money is going to the administration. Since it was administrators that got us into this mess to begin with, it would seem that getting top heavy is exactly the wrong thing to do. But if all these TDCJ administrators can maintain this for 3 years, their retirement will be based on these salaries. I'm figuring that's about how long the agency will be able to stay afloat under current conditions.

The pepper spray policies are causing a lot confusion. Do we attempt to restrain? Or, do we just step back and wait till the pepper spray arrives? Recently, the staff was informed that restraints were no longer allowed, and that to restrain a youth was putting your job on the line. In other words, touch a youth - get fired. Staff was told that they were to step back and wait until the pepper spray arrived. The trainers were told that "handle with care" was no longer to be a part of training and to stop teaching it. As of yesterday, the trainerd are back to teaching how to restrain. Our facility does video tape pepper spray use incidents. (When they could find one with a charged battery). I am glad that the pepper spray was brought back. We needed it 3 years ago. Our facility had to deal with dorm riots almost on a weekly basis. Staff assaults and staff injuries went way up! For those who think that there is a better way to deal with riots, I would like to know what that is. 'Cause, we tried everything, from "verbal judo" to "handle with care".

Pepper spray could always be used to handle "riots," of course - the policy change was to have it used before any and all physical restraints.

BTW, I hear "Bronco Billy" has a draft of a new GAP policy they're going to put through the actual rule-change process, but the language, as usual, hasn't been made public. It will supposedly change the GAP to allow wider use of pepper spray.

The problem with much of the talk of pepper spray has to do with our population. We have little ADHD kids and we've have trained mililtary guerilla soldiers from Central America. Certainly, the latter is more dangerous in general, but to our staff at TYC it is more likely the little ADHD kid who is going to attack to prove how tough he is. The agency has tried to segregate these kids as much as possible, but the problem is still that the little ADHD guys are more likely to behave in such a way to get sprayed than the hardened murderers, rapists, and gang-bangers. Our state chloroformed our Mental Health services back in the seventies and has continued to do so. We don't want to pay for treatment. We want these little buggers locked away out of sight, out of mind.

Here is my opinion about the use of pepper spray. Since it has been introduced into the system again staff injuries have been cut almost in half. And the injuries to students have been almost cut in half also. I hear a lot of pros and cons about the use of the spray. Does it feel good to be sprayed? The answer would be no. But witin a few hours after being sprayed the youth is back to normal and there are no broken arms or injuries to the youth or the staff. And everyone wins. I hear all these groups saying that they do not want the youth sprayed. Well here is the second option, youth has to be physically restrained and a staff is injuried charges are pressed on the youth and he is sent to prision for 3 years for assualt on a TYC staff. I think that in this case that pepper spray is the better option

Where are you getting your stats Kevin? Are you talking about your facility or agencywide? I haven't seen anything to prove what you state. If you are going to state things such as you have, back it up with some kind of documentation! At our facility, I can count on one hand the number of times we've had to use pepper spray. So, I don't agree with your comments.

So, did lack of using manual restraint play a role in the kid at Evins who was stabbed several times with a pencil by another kid? Did staff sit back and watch while the stabbing took place, waiting for the OC Rangers to come riding in?? I'm sure his parents will be glad to know that Evins did everything they could to keep everyone safe.

There are two things going on with staff right now - there are those who are honestly confused about what is required, and there are those who are using the confusion as an excuse not to do their jobs. We need clear cut rules that allow the good employees to do their jobs and that do not give the poor employees wiggle room to avoid doing their jobs.

What's also really kind of interesting is back in 2005 and 06, Bob couldn't fart at Evins without being on Channel 5 or in the McAllen Monitor. What's up now that La Mme is in charge? Why has there been little or no media coverage? Kids getting stabbed, security being full, campus unrest, drugs on campus and the latest Supt being run off seems to be of no interest to the media down here. Chuy and Pena have been totally quiet about Evins as of late. What's up with that? Hmmmmm.

What's up is that Chuy does not want to admit that what he and his colleagues produced was not a fix. Remember, his colleague from the valley in the House proclaimed that TYC is fixed! They were all dancing around, slapping each other on the back for the great job they did.

This is exactly what happens when too many want to be CHIEFS want to make up their own policies and repeatedly failing to follow those already outlined in GAP. This also happens to staff when they are trying to write them up on bogus crap and justify that it's written somewhere but it sure the hell is not written in GAP. I have not seen or heard of anyone following the GAP 100% and it's a BIG SHAME. The higher people are really the ones that are breaking the rules and doing what they please. I know that if I was part of an investigation team that happens to show up unanounced to see what every facility is doing, I sure the hell would. If I was the one to be able to hire people who were wanting to do a job of investigating all facilities; I would hire enough to cover each dorm on each facility to go undercover as a new employee and investigate the shady deals of crooked administrators, Supervisors, Shift Leaders as well as staff. Then have them reported to the MAIN PERSON to have this checked out. I believe this is the only way you are going to take care of business. Plus I also believe that EVERY DAMN FACILITY THAT RUNS THEM SHOULD ALL BE TRAINED SO THAT THEY WOULD FOLLOW ALL POLICIES AND THAT THEY ARE NOT ABLE TO JUSTIFY POLICIES TO THEIR WAY OF "STUPID" THINKING. We have lost too many GOOD STAFF but yet we still have those in the higher up with DWI(s) that the HIGHER UP are able to JUSTIFY and still have them employed. Is this calling the kettle black or what. Another question: Are any of you going to take staff seriously when they make reports to their Supervisors of ongoing relationships that staff, caseworkers or anyone in the facility are having with students? Will any of you look into it or put it aside like the rest of the other reports? It's pretty damn hard to say or report anything because the Supervisor, PA, Assnt. Superintendent and Superintendent will only call any staff that they are troublemakers and unhappy staff who are only causing a hostile environment for the other workers. I refuse to believe this, it just shows me and several other staff that they can not do a thorough investigation of the matter or just covering up because he/she is "ONE OF THE CLICK MEMBERS". This kind of crap will never end. It does not surprise me that TDCJ will soon take over because TYC can not do its JOB.

2:39, cut the crap! If you know of, or suspect abuse or neglect, call the hotline, or slip a note under the door of the IG. Sometimes suspicions are only that - suspicions; but let the people who are trained and dedicated to looking into these things check it out. If 99 out of 100 turn out to be bogus, it is that one that is real that really matters. We've got some damn good cops working for us now - that is one of the few good things that came out of SB103. The Ombudsman is another, and he is very accessible. Old Salty

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